Language Politics and Administrative Law

Paul Daly October 18, 2012

If you walk through the city centre streets of Montreal, you could well be walking along any street in North America, such is the predominance of big-name brands. This has long been a bone of contention for Quebeckers. Protest marches are not uncommon. Symbolically, the issue is of great importance, all the more so given the recent return to power of the Parti Québécois.

Now from La Presse comes an interesting story about an application for judicial review by six multinational companies. They challenge a new interpretation of an existing regulation by the Office québécois de la langue française. If the interpretation withstands challenge, Wal-Mart, Best Buy, Costco, Old Navy, Guess and Gap will have to add a French term to their English trademark.Whether the interpretation will withstand challenge is an interesting question. My initial take, based on the news report, is as follows:

— Does the OQLF have the power to enforce its new understanding of the regulation in question? My tentative answer is yes: administrative agencies are not bound to follow one interpretation for all time; they do not carve their decisions on tablets of stone.

— The real battleground is the reasonableness of the new interpretation.

— I imagine the companies will argue: (a) that there is no evidence to support a change in interpretation;

— (b) that the new interpretation is misguided, because it requires them to translate brand names which, in some cases, simply cannot be translated (how would you translate “Costco”?);

— (c) that the new interpretation interferes with Canada’s regime of trademark protection by diluting their trademarks, something beyond the jurisdiction of the OQLF;

— and (d) that the new interpretation interferes with their Charter rights.

A ding-dong battle is to be expected on all of these points, with (b) and (c) the strongest suits for the companies.